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What Does the ICC Decision Mean for Kenya?

January 31, 2012

What does the ruling by the International Criminal Court (ICC) mean for Kenya’s presidential election later this year, now that cases against two top aspirants—First Deputy Prime Minister Uhuru Kenyatta and Kalenjin leader William Ruto—are to proceed to trial in The Hague? Civil society has already started planning to initiate legal cases, preventing Kenyatta and Ruto from being candidates for the presidency under Chapter Six of the new Constitution. This bars individuals from holding political office while charges are pending against them. It is uncertain whether this applies to candidates for office, and Kenyatta and Ruto are certain to argue that they are innocent until proven guilty by the ICC and should, consequently, be permitted to contest the presidential election, although Kenyatta resigned his post as minister of finance following the ICC decision. The Kenyan courts will have to decide whether Kenyatta and Ruto can contest the election. Among the most striking development of the last year of reforms has been the cleansing and empowerment of the judiciary. The new, assertive Supreme Court under Chief Justice Willy Mutunga will have the last word.

Will the decisions of the ICC and the Kenyan court make any difference to the election battle? Perhaps, but not in the way that many people think. The banning of Kenyatta and Ruto is more likely to work against Raila Odinga, current prime minister and election frontrunner, than to weaken his opposition. It is becoming increasingly evident that Kenyatta is unelectable. Despite being the son of Kenya’s first president, Kikuyu nationalist Jomo Kenyatta, the young Kenyatta does not appeal to more than the core Kikuyu constituency, Kenya’s largest ethnic group, and a portion of the closely related Meru. Educated but unemployed young Kikuyu and Meru are far from attracted by his image as “the crown prince” or “Kenya’s richest man,” and Odinga has been campaigning hard among this group. Kenyatta, intelligent and personally charming though he is, cannot secure the votes of more than about 25 percent of the electorate, 7 percent less than he managed to win in his first presidential campaign. After his defeat in December 2002, he had a choice: to rebuild the long-ruling Kenya African National Union (KANU) as a modern political force or to return to the old ethnic politics. In 2003, he made a number of progressive-sounding speeches about transforming the former ruling party into a center-left, social democratic party, based on ideology rather than ethnicity. But this initiative seems to have been abandoned.

Kenyatta has taken the easy option, falling back into the embrace of his family and the Kikuyu establishment. He has been near the top of Kenyan politics now for more than a decade but has no achievements to his credit. He has failed to reform the system—indeed, he has stopped trying—and is surrounded by Kikuyu advisers. Kenyatta is mired in old-style ethnic politics, and any attempt to build a multiethnic coalition has been abandoned. Only a small Kalenjin faction, loyal to his patron, former president Daniel arap Moi, is likely to support him. Kenyatta’s advisers have little understanding of why Kikuyus are so unpopular among the country’s other ethnic communities. Displays of ethnic insensitivity—most other Kenyans would say Kikuyu arrogance—do not bode well for his political prospects. Kenyatta’s decision to rely on the support of the Kikuyu establishment will prove fatal, rendering him unelectable.

For his part, William Ruto is incapable of breaking out of his own Kalenjin base, and even here he will face opposition from the remaining Moi forces who will support Kenyatta. Other Kalenjin leaders, led perhaps by Sally Kosgei, the former secretary to the cabinet and now a member of Parliament for Aldai and minister of agriculture, may remain with Prime Minister Odinga. As a result, even if Ruto is permitted to contest the election, he seems unlikely to gain more than 10 percent of the vote. Kalenjin voters are likely to fragment in the second round with a substantial bloc going to Odinga. Ruto may personally be willing to endorse Kenyatta—after all he was his presidential campaign manager in 2002, and relations between the two men remain good—but Kalenjin community elders are unlikely to agree, especially as the Kikuyu and Kalenjin fight over the political spoils in the new Nakuru County, a major center of violence in 2007–2008. Local Kikuyu leaders are demanding almost complete control, precluding any agreement between the communities. As a result, at least two-thirds of Kalenjin voters will end up supporting Odinga in the second round, whatever Ruto says.

On this calculation, the winner of the presidential election seems likely to be Prime Minister Odinga, who since he first contested the presidency in 1997 has built up a broad coalition, centered on his Luo ethnic group. Odinga commands the support of 40 to 45 percent of voters, stretching from Lake Victoria to the Indian Ocean and from the isolated Somali-populated Northeastern Province to bustling Nairobi. He is the frontrunner, and neither Kenyatta nor Ruto is capable of effectively challenging his momentum.

The others—Vice President Kalonzo Musyoka, former justice minister Martha Karua, businessman Peter Kenneth, and former foreign minister Raphael Tuju—are not serious candidates. The vice president will do less well this time among his native Kamba than he did in 2007, as disillusionment is growing with his failure to deliver patronage. Karua, potentially “the Margaret Thatcher of Kenya” who would shake up the system more than anyone else, is widely respected but will be punished for her statements in 2008 that Odinga’s party had planned ethnic violence and that Kibaki had clearly won the election, as well as for her hard stance during the negotiations leading to the current coalition government. Her gender also counts against her, and she will encounter difficulties in winning more than 15 percent of the Kikuyu vote. Kenneth’s appeal is restricted to a small part of Central Province, and he has no front-rank political experience. Tuju is in uncertain health and unlikely to make any inroads into Odinga’s vote in South Nyanza, despite the efforts of certain Kikuyu businessmen to run him as a spoiler to take Luo votes away from the prime minister.

There is, however, one candidate who might give Odinga sleepless nights, and that is George Saitoti, former president Moi’s long-serving vice president, who for the past 10 years has served in the Kibaki government as minister of education and now minister of state for security. In the 1992 and 1997 multiparty elections, Saitoti, the member of Parliament for Kajiado North, presented himself as a Maasai politician, despite the fact that he speaks little Maa and is widely acknowledged to be a Kikuyu. Nevertheless, Saitoti remains popular among the Maasai and with the Samburu and Turkana, and he is quietly building support. If Kenyatta is banned from contesting the presidency, Saitoti seems likely to emerge as the frontrunner to take over the mantle of Kikuyu candidate. His 20 years in Moi’s government, moreover, means that he has good relations with many Kalenjin leaders, stretching far beyond the former president’s inner circle. Thus, Saitoti could bring together the Gikuyu-Embu-Meru and the Kalenjin-Maasai-Turkana-Samburu in a formidable challenge to Odinga. An Odinga-Saitoti contest would be a closely fought two-horse race, and it is difficult to predict who might emerge victorious. Odinga would present himself as the candidate of reform, while Saitoti would clearly represent the old order.

Such a contest would not engender the same violence as in 2007–2008. The most combustible election is one in which Kalenjins and Kikuyus are pitted against one another. An Odinga-Saitoti contest would, in fact, bring the two communities together. This is not to say that there might not be isolated eruptions of local violence in Kisumu, Nakuru town, Nairobi, or perhaps most dangerously at the Coast, where the Mombasa Republican Army, an armed militia, is becoming a serious threat, challenging the legitimacy of the Kenyan state. The Coast is an ethnic tinderbox whose indigenous residents resent the acquisition of land by up-country members of the elite and the competition for jobs and land from incomers. This is reinforced by the Muslim community’s perception of itself as second class in Kenya. But it seems unlikely that 2012 will see a repeat of January-February 2008, if only because the political elite have learned their lesson and recognize that the situation almost got beyond their control. The business community and the military have issued warnings, and the specter of the ICC now looms. Kenya’s tradition of impunity for political violence has been challenged by the Waki Commission report into the 2008 ethnic violence and by the ICC charges.

Paradoxically, Odinga must hope that Kenyatta and Ruto are permitted to contest the presidency. With them in the field, a Saitoti candidacy would be effectively blocked, and Odinga would sail into State House in the second round. If Kenyan civil society gets its way, however, and Kenyatta and Ruto are not permitted to run, then Professor Saitoti might emerge as a formidable opponent for Prime Minister Odinga, despite the baggage he still carries in Washington and London from the Goldenberg Affair, the massive corruption scandal of the mid-1990s. Whatever happens, developments at the ICC will continue to have important ramifications for Kenyan politics and the forthcoming elections.

David Throup is a senior associate with the Africa Program at the Center for Strategic and International Studies in Washington, D.C.

Commentaries are produced by the Center for Strategic and International Studies (CSIS), a private, tax-exempt institution focusing on international public policy issues. Its research is nonpartisan and nonproprietary. CSIS does not take specific policy positions. Accordingly, all views, positions, and conclusions expressed in this publication should be understood to be solely those of the author(s).